IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:
MR. JUSTICE QAZI FAEZ ISA
MR. JUSTICE YAI-IYA AFRIDI

Civil Appeal No. 230 of 2016

(On appeal from the judgment dated
06052013 passed by the Islamabad Nigh
Court, Islamabad in C.R. No, 121113)

Mst. Raj Begurn (deceased) through her

L.Rs and others. Appellants
Versus
Mst. Ajaib Jan (deceased) through her
L.Rs and others. ... Respondents

For the Appellants: Mr. M. Ishtiaq Ahmed Raja, ASC.

For Respondent Nos. 2-4: Mr. Zulfiqar Ali Abbasi, ASC.

Syed Rifaqat Hussain Shah, AOR.

For Respondents Nos. 1-A,: Ex-parte.

C(i)-(v), 15 & 16

For Respondent No. 1-13: Zahid Mehmood Abbasi, Attorney.

Date of Hearing: 19.04.2022

JUDGMENT

Qazi Faez Isa, J. Allah Ditta died in the year 1947 or 1948. He was
survived by a widow, two sons and three daughters. Inheritance mutation
number 2207 in the names of his two sons was attested on 6 April 1956
and showed them as the sole heirs to the agricultural land of Allah Ditta
measuring 53 kanats and 13 rnarlas. A suit was filed by Allah Ditta's
daughters, who claimed their inheritance and sought cancellation of
inheritance mutation number 2207. The suit was decreed, the appeal
against the same was dismissed, and so too was the civil revision filed in
the High Court by the appellants. It is against these three concurrent
judgments that a petition for leave to appeal (CPLA No. 1252/2013) was
filed and leave was granted vide order dated 24 February 2016.

2. The learned Mr. M. Ishtiaq Ahmed Raja, representing the appellants

(who are the legal heirs of the sons), states that, at the time of death of
Civil Appeal No. 230 of 2016 2

Allah Ditta laws of inheritance as per Islamic Shariat were not applicable
and as per prevailing custom sons alone were entitled to the estate of their
father. In this regard reliance was placed on the West Pakistan Muslim
Personal Law (Shariat) Application Act, 1962 ('the 1962 Act'). Section 2-A
of the 1962 Act stipulates that, 'where before the commencement of the
Punjab Muslim Personal Law (Shariat) Application Act, 1948, a male heir had
acquired any agricultural land under custom' he 'shall be deemed to have
become, upon such acquisition, an absolute owner of such land, as if such
land had devolved on him under the Muslim Personal Law (Shariat).' The
learned counsel submits that the said Punjab Muslim Personal Law
(Shariat) Application Act, 1948 ('the 1948 Act) was enacted on 15 March
1948 ('the cut-off date'). Therefore, since Allah Ditta died prior to the cut-
off date his sons alone would become the owners of his estate, to the
exclusion of the other legal heirs. To support his contention reliance is
placed on the decision in the case of Ghularn Haider v Murad (PLO 2012 SC
501).

3. Learned Mr. Zulfiqar Ali Abbasi, who represents two daughters/their

legal heirs, submits that the three concurrent judgments had correctly
applied the facts and the applicable law. Therefore, this appeal be
dismissed. He further states that there is nothing on record to establish that
the two sons had acquired the said agricultural land before the 1948 Act
was enacted. On the contrary, learned counsel says, admittedly the sons
purported to acquire the said land pursuant to inheritance mutation
number 2207, which was made in their favour of on 6 April 1956, that is,
long after the cut-off date of 15 March 1948. And, section 2-A of the 1962
Act requires the male heir to have 'had acquired any agricultural land under
custom' before the cut-off date. However, the sons, as per their own
showing, had acquired the said land after the cut-off date. It is next
submitted that the decision in Ghulam Haider v Murad also does not
support the Sons' claim of exclusive ownership, as therein the mutation in
favour of the son was made in the year 1944, that is, before the cut-off date.
The decision in Ghularn Haider v Murad had stated that acquisition prior to
the cut-off date was essential for a son or sons to claim exclusive ownership,
as under:

'However, as regards Murad's suit filed against Mutation No.

5631 attested on 28.02.1959 in favour of Mst. Sehati and Mst.
Civil Appeal No. 230 of 2026 3

Bona the said suit should also have failed because the land
subject matter of that mutation had never been formally
"acquired" by Murad before March 15, 1948. Section 2-A
introduced through Ordinance XIII of 1983 was applicable
only to those acquisitions of agricultural land which
acquisitions had come about prior to March 15, 1948 and in
the case of the land subject matter of Mutation No. 5631 there
was no formal acquisition of that land by Murad till
attestation of that mutation on 28.02.2959 and, thus, after
March 15, 1948 the said land could have devolved upon the
heirs of Lal deceased only under the Islamic law of
inheritance and not under the customary law of inheritance
which by then had become extinct. In this view of the matter
the suit filed by Murad challenging Mutation No. 5631
attested on 28.02.1959 was liable to be dismissed.'

The aforesaid (extract from paragraph 11, at page 542), according to

learned counsel, clinches the argument in favour of all legal heirs

4. We have heard the learned counsel for the parties and with their able
assistance examined the documents on record, the applicable laws and the
cited judgment. In our considered view the contention of the learned
counsel for the respondent is correct. Because, even if it be accepted that
Allah Ditta died before the cut-off date of 15 March 1948 the two sons had
not acquired the said land, and, thus, excluded the other legal heirs. The
purported exclusion of the other legal heirs took place when inheritance
mutation number 2207 took place in the sons' favour on 6 April 1956,
which was after the cut-off date of 15 March 1948. The sons had relied
upon the inheritance mutation number 2207 to establish their acquisition
but such purported acquisition did not accord with the requirements of the
1962 Act, the enactment date of the 1948 Act and the interpretation thereof
by this Court in the case of Ohulam Haider v Murad.

5. Leave to appeal was granted by recording learned Mr. M. lshtiaq

Ahmed Raja's contention (which has also been noted by us above) with
regard to the 1962 Act, the enactment date of the 1948 Act and the
decision in the case of Ghulam Haider v Murad (above). And, we have
considered the application of the 1962 Act, the 1948 Act and the said
Civil Appeal No. 230 of 2016 4

decision with regard to the date of purported acquisition by the two Sons.
Admittedly, the purported acquisition by the two sons was through
inheritance mutation number 2207, which was after the cut-off date of 15
March 1948. Therefore, the inheritance mutation number 2207 and the
purported acquisition by the sons cannot be saved as being contrary to the
application of Islamic Shariat law of inheritance. Consequently, it was
correctly cancelled. And, all the legal heirs of Allah Ditta are entitled to his
estate as per their respective shares in accordance with Islamic shariat.

6, Therefore, for the aforesaid reasons, this appeal is dismissed. In case

the judgments of the subordinate courts and of the High Court have still
not been implemented by the concerned authority, and the ownership of all
the legal heirs of Allah Ditta is not recorded in the property records, the
same should be done immediately, as decades have already passed since
the death of Allah Ditta and some of his legal heirs have remained deprived
of their inheritance.

Islamabad
19 .04 .2022
Approved for Reporting
Anf